ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeals of

-- ) ) The Boeing Company ) ) ) ) ) Under ContractNo. 000000-00-0-0000 

### et al. )
APPEARANCE FOR THEAPPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA Nos. 58030, 58593, 58594 58660, 59212,59220 59813,60376,60403 60411,60522,60736

Seth H. Locke, Esq.

Perkins Coie Washington, DC ArthurM. Taylor, Esq.

DCMADeputy ChiefTrial Attorney Lawrence S. Rabyne, Esq.

Trial Attorney Defense Contract ManagementAgency Arlington Heights, IL RobertL. Duecaster, Esq. Kara M. Klaas, Esq.

Trial Attorneys Defense Contract Management Agency Chantilly, VA OPINION BYADMINISTRATIVE JUDGE NEWSOM ON APPELLANT'S MOTIONFORRECONSIDERATION Boeing seeks reconsideration ofthe Board's May 23, 2018 decision denying its motion to suspend these 12 Boeing appeals, or in the alternative to dismiss them withoutprejudice. 1 

### The Boeing Company, ASBCANo. 58030 

### etal., 18-1 BCA ,i 37,067. The motion for reconsideration is denied. Boeing also requests thatthe Board's Senior Deciding Group consider its motion for reconsideration. Under the Board's rules, the Chairman may refer an appeal to the Senior Deciding Group ifthe appeal is ofunusual difficulty, of significantprecedential importance, or ifthe appeal has occasioned serious dispute withinthe normal division decision process. ASBCA Rules, Preface, PartII(c), 48 C.F.R. Chapter 2, App'xA, Part 2. The Chairmanhas reviewed Boeing's motion and,

1 The government declined to respond to either motion (gov't ltr. dtd. July 9, 2018). 

# Ias the decision does not meetthe aforementioned criteria, declines to refer the matter to the SeniorDeciding Group.
Reconsideration might be appropriate ifthe request "is basedupon newly discovered evidence, mistakes in the findings offact, orerrors oflaw." 

### Green Valley Co., ASBCA No. 61275, 18-1 BCA

## ,r 37,044;

### AllianceRoofing & 

### SheetMetal, Inc., ASBCA No. 59663, 15-1 BCA

## ,r 36,063. Reconsideration is not intendedto "provide a party with the opportunity to reargue its position." 

### Robinson Quality Constructors, ASBCA No. 55784, 09-2 BCA 

### ,I 34,171 at 168,911. Boeingprincipally contends thatthe Board imposed an improper, "heightened" legal standardthat Boeing asserts is applicable only to "contested"motions for suspension or dismissal under BoardRule 18, rather than whatBoeing assumes is a more-relaxed legal standard applicable to uncontested motions (app. mot. at 3). Boeing is incorrect. Rule 18, by its plainterms, does not create different legal standards depending uponwhether a motion is, or is not, contested. The Rule allows the Boardto grant a stay or dismissal without prejudice on a showing of"good cause." The Rule contains no different standard for uncontested motions. We applied exactly that "good cause" standard in rejecting Boeing's motion. 

### See Boeing, 18-1 BCA 

## ,r 37,067 at 180,426-28.
Board case law also does not create a different standard for contested motions. Rather, we make case-by-casejudgments as to whether good cause exists, based upon many factors. 

### Public Warehousing Company, ASBCA No. 56116, 08-1 BCA

## ,r 33,787 at 167,227-29;

### KelloggBrown & RootServices, Inc., ASBCA No. 56358, 11-1 BCA 

## ,r 34,614 at 170,603-05. The relative weight ascribed to these factors varies from case to case, butthe standard for evaluating the stay request- good cause - remains the same. The Board in its discretion typically considers the impact onthe non-moving party, but we are aware ofno authority- and Boeing cites none- requiring the Board to grant a stay request, simplybecause the motion is uncontested. To the contrary, no party has a

### perse rightto a stay or dismissal at the Board. 

### WEDJ/Three C's, Inc., ASBCA Nos. 53747, 53756, 05-2 BCA 

### ,I 33,070 at 163,896. Here, Boeing'sjustification for a stay/dismissal was so unpersuasive and lacking inmerit thatthe absence ofprejudiceto the government could not salvage it, even ifthe standard were relaxed. We explained the flaws in Boeing's motion in our decision and do notrepeat them, exceptto emphasize two observations. First, Boeing elides, as it has throughout, the fact that Boeing is the author ofits own fortunes. Boeing chose to file these 12 appeals atthe Board. Then Boeing, along with the government, chose to ask the Boardto stay these appeals, repeatedly, for the last six years. As a result, these 12 appeals have not moved forward. Boeing then chose to file new cases at the Court ofFederal Claims (COFC), then it chose, with 2 

# I lgovernment concurrence, to request an additional stay ofthe Board appeals while it pursues that COFC litigation. This situation was not foisted on the parties; is not "the extraordinary result ofan unusual combination ofcircumstances," as Boeingputs it (app. mot. at 7). The present situation is the result ofthe parties' strategic choices. In these circumstances, it was a tall order for Boeingto persuade us that it should not have to litigate appeals that Boeing itselfchose to file, and unsurprising that it failed to do so. Second, Boeing's argumentrests on a prediction that a possible future decision from the Federal Circuit, on appeal from a possible future COFC decision, will make it easierto resolve these Board appeals (app. mot. at 7). Theparties have consistently predicted that future decisions in other cases would resolve these appeals, and they have consistently been wrong. 2 

### See Boeing, 18-1 BCA

## ,r 37,067 at 180,424, SOF 

## ,r,i 7-11. We are no longer willing to accept theirpredictions. Indeed, little ifanything would be gained by a stay. A Federal Circuit decision on the 

### one issue commonto the COFC cases and the Board appeals

- Cost Impact Aggregation

- will not significantly accelerate resolution ofthese appeals. As our decision explains, each Board appeal presents issues other than Cost Impact Aggregation. 

### Boeing, 18-1 BCA

## ,r 37,067 at 180,424, SOF 

## ,r 3. IftheFederal Circuit eventually rules, then discovery and other proceedings at the Board will still be necessary to resolve the remaining issues. Ifwe stay these appeals, by the time the Federal Circuit rules (ifit does rule), the appeals will be even older than they are now. Instead ofthe oldest appeals starting discovery after 6 years ofwaiting (as now), they may be 8, 9, orpossibly 10 years old when they finally commence discovery. Ifwe stay these appeals butno Federal Circuit decision is issued on the merits, the delay will have beenpointless. Moreoverthe Boardwill not carry inactive appeals on the active docket for an indefinite period oftime. Boeing's remaining bases for reconsideration reflect mere disagreement with the Board's conclusions and thus do notwarrant reconsideration.

2 Boeing asserts that a Federal Circuit appeal is "certain" because bothparties have "unequivocally" stated their intention to appeal from an adverse COFC decision (app. mot. at 17). This assertion is not correct. The transcriptportions to which Boeing cites contain no such "unequivocal" commitment, and Boeing's characterization is contradictedby the fact that only the Solicitor General (SG) may authorize a government appeal. 28 C.F.R. 

### § 0.20(b). Not surprisingly, the SG has not authorized the governmentto appeal, as there is no COFC decision yet from which an appeal could be taken (gov't ltr. dtd. July 12, 2018). 3 

# I

### CONCLUSION The motion for reconsideration is denied. Dated: August 20, 2018

I concur

RICHARD SHACKLEFORD Administrative Judge Acting Chairman Armed Services Board ofContractAppeals Administrative Judge Armed Services Board ofContract Appeals

I concur

Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA Nos. 58030, 58593, 58594, 58660, 59212, 59220, 59813, 60376, 60403, 60411, 60522, 60736, Appeals ofThe Boeing Company, rendered in conformance with the Board's Charter. Dated:

4 

### JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals